FEDERAL COURT OF AUSTRALIA

Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 293

THE COURT ORDERS THAT:

1.    The appeal from the orders of the Federal Magistrates Court of 30 October 2009 be dismissed

2.    The appellant pay the respondent’s costs of the appeal, such costs to be taxed in default of agreement.

3.    The costs referred to in paragraph 2 of this order form part of the petitioning creditor’s costs if a sequestration order be made, or has been made, as a result of the appellant’s non-compliance with Bankruptcy Notice VN 358 of 2009.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 20 February 2009 the abovenamed respondent, Blueprint Printing Pty Ltd (“Blueprint”) issued a second bankruptcy notice No. 358/2009 (“the second bankruptcy notice”) based on the same orders of 9 November 2005 of the Taxing Master of the Supreme Court of Victoria which had been identified in my separate reasons published today, in proceedings in this Court No. VID 921 of 2008 (“the first reasons”).

2    On 30 October 2009 Phipps FM in the Federal Magistrates Court ordered;

1.    The application filed 20 July 2009 to set aside Bankruptcy Notice VN 358 of 2009 is dismissed.

2.    The applicant pay the respondent’s costs. The costs in this application be also creditors costs in any creditors petition brought based on Bankruptcy Notice VN 358 of 2009.

3    On 12 November 2009, Julene Winn (“the appellant”) filed a notice of appeal from the orders set out at [2] above. On 12 March 2010 the appellant sought leave to amend that notice. I shall deal with the appeal on the basis that it is brought on the following grounds set out in the proposed amended notice of appeal;

1.    The Court erred in failing to find that the bankruptcy notice:

a)    was issued out of time;

b)    is not supported by the judgment / final order;

c)    is not based on an order that requires the appellant to pay Blueprint;

d)    is not in accordance with the terms of the attached order;

e)    is based on an order that is not a final order;

f)    overstates the amount of judgment debt;

g)    misstates the claim as a judgment debt;

h)    overstates the interest claimed;

i)    was issued by only one of the joint creditors Blueprint and Goodwin;

j)    is invalidated by each of 1. a) to i).

2.    The Court erred in failing to consider the evidence (and to find) that:

a)    the appellant has a counterclaim in excess of the amount claimed;

b)    the two notices before the Court cannot both be valid;

c)    the costs assessment is in dispute;

d)    Blueprint and Goodwin are joint creditors;

e)    Blueprint claimed as its costs in Supreme Court no. 4215 of 2002 Goodwin's costs in nos. 4216 and 4217 of 2002;

f)    Goodwin gave sworn evidence that Blueprint paid his legal costs and claimed those costs on taxation;

g)    pursuant to Supreme Court Rule 63.56.1(5) the Taxing Master must review the costs and vary or confirm the order;

h)    the Supreme Court has failed to conduct the review since 13 December 2005 and to hear the appeal from 1 May 2006 to date;

i)    the sworn statements of Mr. Lassen and Terry that the appellant paid $1,750 in respect of the order of the Taxing Master of 9 November 2005 are false;

j)    in the circumstances of (d), (e), (f), (g) and (h) the order of 9 November 2005 was obtained by dishonesty and a miscarriage of justice;

k)    Blueprint’s conduct in (i) claiming Goodwin’s costs of 4216 and 4217 of 2002 as Blueprint’s costs in 4215 of 2002 to defeat the appellant’s counterclaim against Goodwin, and (ii) repeatedly issuing (4) bankruptcy notices that are invalid and / or not pursued for the collateral purpose of frustrating the review of taxation costs is an abuse of process;

3.    The Court erred in failing (i) to find that the issue of two notices based on the same order is an abuse of process and (ii) to stay Notice VN 358 of 2009;

4.    The Court erred in independently procuring material outside the hearing;

5.    The Court erred in prejudging the outcome of the appeal from the order of Federal Magistrate Riley;

6.    The Court erred in obtaining and copying two previous erroneous judgments without notice to the appellant.

7.    The Court denied procedural fairness in permitting Blueprint to rely on material submissions and precedents that had not been served on the appellant;

8.    The Court denied the appellant procedural fairness in denying the appellant appearance by videolink;

9.    The Court denied the appellant procedural fairness in failing to consider the appellant’s affidavits in FMC 1531 of 2007 and Supreme Court 4215 of 2002;

10.    Counsel for Blueprint was not registered to appear as counsel in the federal courts.

4    Although some of the grounds in the notice of appeal of 12 November 2009 seek to raise again grounds discussed in the first reasons, it is convenient to examine separately, and in order, each of the grounds of appeal invoked in this second proceeding, VID 817 of 2009. Where appropriate, I shall incorporate by reference in these reasons explanations and observations which I have made in the first reasons.

Ground 1(a) – That the second bankruptcy notice was issued out of time.

5    In support of this ground, the appellant invoked s 41(3)(c)(i) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). Sub-section 41(3) of the Bankruptcy Act provides;

A bankruptcy notice shall not be issued in relation to a debtor:

(a)    except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor;

(b)    if, at the time of the application for the issue of the bankruptcy notice, execution of a judgment or order to which it relates has been stayed; or

(c)    in respect of a judgment or order for the payment of money if:

(i)    a period of more than 6 years has elapsed since the judgment was given or the order was made; or

(ii)    the operation of the judgment or order is suspended under section 37.

6    In reliance on s 41(3)(c)(i), the appellant contended that the judgment or order to which the second bankruptcy notice related was the order of Byrne J in the Supreme Court of Victoria which was made on 2 August 2002 and not the order of the Taxing Master who taxed the costs which the appellant had been ordered by Byrne J to pay. The Taxing Master’s order was made on 9 November 2005. In relation to this point, the learned Federal Magistrate observed, at [34] of his reasons;

The applicant's argument that the bankruptcy notice is out of time depends on the success of her argument that the final order was the order of Byrne J. of 2 August 2002, not the order the Taxing Master of 9 November 2005. That argument has not been successful.

7    The order of Byrne J of 2 August 2002 was made in a proceeding numbered 4215 of 2002 in the Supreme Court of Victoria. The only parties to that proceeding were the appellant, Ms Winn, as applicant and Blueprint. There were other proceedings numbered 4216 and 4217 in which the appellant was also the applicant and a Mr Goodwin was the sole respondent. It appears that, in the proceeding numbered 4215 of 2002, Byrne J dismissed the appellant’s appeal from the Victorian Civil and Administrative Tribunal and ordered that the appellant pay Blueprint’s costs of that appeal.

8    The “General Form of Order” recording the Taxing Master’s order of 9 November 2005 notes that it was obtained on “Respondent’s Summons for Taxation filed 24 June 2005” and embodied a “Taxation pursuant to the order of the Honourable Justice Byrne made 2 August 2002”. The operative part of the order was in these terms:

THE COURT ORDERS THAT:

1.    The costs of Blueprint Instant Printing Pty Ltd are taxed and allowed in the sum of $17,139.20.

9    The learned Federal Magistrate noted decisions in this Court to the effect that an order of a taxing master was not a final judgment for the purpose of issuing a bankruptcy notice; see Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441 (“Commonwealth Bank v Horvath (Junior)”); Franks v Warringah Council (2003) 131 FCR 287 (“Franks v Warringah Council”) and Moran v Lydiard Financial Services Pty Ltd (2005) 222 ALR 333.

10    In Franks v Warringah Council the alleged debtor had been ordered to pay the Warringah Council’s costs pursuant to s 69(2)(c) of the Land and Environment Court Act 1979 (NSW). In accordance with that provision, the Land and Environment Court ordered that the costs be agreed between the parties or, in default of agreement, assessed under the Legal Profession Practice Act 1987 (NSW) (“the Legal Profession Practice Act”). Section 208J(1) of the latter Act required a costs assessor to issue to each party a certificate setting out his or her determination. Section 208J(3) provided:

In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of the court having jurisdiction to order the payment of that amount of money and with no further action, taken to be a judgment of that court for the amount of unpaid costs …

11    The Supreme Court Rules 1970 (NSW) by Pt 44 r 7(1) obliged a person requiring the issue of a writ of execution to file an affidavit verifying facts including (ix) that “the judgment was entered as a result of the filing of a certificate under section 2085(3) and that the determination had not been suspended”. Annexed to a bankruptcy notice issued on behalf of the council was a certificate purportedly in accordance with s 208J(3). Branson J held that a certificate merely setting out the determination of a costs assessor under s 208J(1) of the Legal Profession Practice Act could not found a bankruptcy notice unless it had been filed in a court of competent jurisdiction.

12    Branson J held that the bankruptcy notice should be set aside because the determination of the costs assessor could not found a bankruptcy notice unless it had been filed in a court of competent jurisdiction. Because her Honour was unable to find that some of the orders had been so filed in the case before her, she felt compelled to set aside the bankruptcy notice. Her Honour explained this conclusion as follows, at 297;

30    Section 40(1)(g) does not, as it seems to me, admit of the possibility that a creditor may have obtained against a debtor more than one final judgment or final order in respect of the one debt, or perhaps more accurately, sourced from the same obligation. Further, s 40(1)(g) of the Bankruptcy Act refers only to final judgments and final orders that can be enforced by a writ of execution (Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 198 per Riley J). I incline to the view that Pt 44 r 7 of the Supreme Court Rules (NSW), as presently worded, does not allow a writ of execution to issue in respect of the orders of the Land & Environment Court on which reliance is here placed. It seems to me to be implicit in Pt 44 r 7, as presently worded, that a writ of execution may only issue in respect of costs determined under the Legal Profession Act to enforce a judgment entered as a result of the filing of a certificate under the Legal Profession Act. .

31    I do not intend by the above to suggest that the orders of the Land & Environment Court did not take effect when the orders were respectively made. Plainly they did; their effectiveness did not depend on the quantification of the costs thereby ordered to be paid (see Minister Administering the Environmental Planning and Assessment Act 1979 v Carson (1994) 35 NSWLR 342). However, as the Council impliedly conceded, none of the orders of the Land & Environment Court could alone found a bankruptcy notice. In each case the amount of the costs which the order required Mr Franks to pay needed first to be quantified. It may well be, but I have no need to determine, that in the case of each order Mr Franks became liable to pay the costs upon the issue of the certificate, provided the determination was not suspended. However, there may exist a genuine debt in respect of which no valid bankruptcy notice can issue (Croker v Federal Commissioner of Taxation [2003] FCAFC 23; (2003) 52 ATR 226).

32    I conclude that each of the bankruptcy notices should be set aside on the basis that it is fatally flawed because the judgment or order upon which it is founded, and which is attached to it as required by Form 1, is not ‘a final judgment or final order, being a judgment or order the execution of which has not been stayed’ within the meaning of s 40(1)(g) of the Bankruptcy Act.

13    In my view, Franks v Warringah Council did not decide that a certificate of a costs assessor (or a taxing master) could not give rise to a final judgment for the purposes of s 40(1)(g) of the Bankruptcy Act. What it decided was only that such a certificate was not taken to be a judgment of a court until it had been filed in the office or registry of the court as required by s 208J(3) of the Legal Profession Practice Act. No such provision limited the efficacy of a certificate of a Taxing Master of the Supreme Court of Victoria.

14    In Commonwealth Bank of Australia v Horvath (Junior), the respondent had been ordered by three orders of the Supreme Court of Victoria to pay costs to the applicant. The costs were taxed together and allowed in the total sum of $55,864.10. The applicant then issued a bankruptcy notice in respect of the costs debt. The relevant form of bankruptcy notice prescribed by the Bankruptcy Regulations required attachment to the bankruptcy notice of a copy of “the final judgment or order relied upon”. In that case there was attached to the bankruptcy notice a copy of the order of the Taxing Master which recorded that the taxation had been pursuant to the orders of Beach J made 23 May 1995, O’Bryan J made 2 April 1996 and Beach J made 10 May 1996. However, no copy of any of those orders was attached to the bankruptcy notice. Finkelstein J in this Court held that the bankruptcy notice failed to meet an essential requirement of the Bankruptcy Act and was not curable by application of s 306(1) of that Act. His Honour observed, at 442 [7];

It is clear enough that an allocatur by a taxing master is not a judgment or order for the payment of money: Re Crump; Ex parte Crump (1891) 64 LT 799. The obligation to pay costs is founded in the judgment or order of the court requiring a party to pay costs to be taxed. Under the Rules of the Supreme Court of Victoria it is provided that where a taxing master assesses costs the result shall be stated in the form of an order: see O 63.56(1). However, by O 63 r 11 such an order can only be enforced as a judgment for the payment of money where the costs are taxed otherwise than under a judgment or order for costs. So, where the rules make provision for the payment of costs in the absence of an order, for example when an action is discontinued (see O 63 r 15), the order of the taxing master will be an order that is capable of being enforced and one that may be described as a final order: see Pepper v McNiece (1941) 64 CLR 642 at 657. Where, as here, a taxing master undertakes a taxation in consequence of an order made by a judge of the court, the taxing master's order is not capable of enforcement. It is not, therefore, a final judgment or order of the Supreme Court and cannot be relied upon to found a petition. Accordingly, the bankruptcy notice is defective in that there was not attached to it copies of the final orders which were the foundation for the debt described in the notice.

15    Commonwealth Bank v Horvath (Junior) has been applied by Gray J, also in this Court in Moran v Lydiard Financial Services Pty Ltd (2005) 222 ALR 333 where there had been attached to the bankruptcy notice only the orders of the Taxing Master of the Supreme Court of Victoria and not the orders of the judge and the Court of Appeal pursuant to which the taxation of the costs had been conducted. Gray J regarded Horvath (Junior)’s case as directly in point and, accordingly, set aside the bankruptcy notice.

16    However, in Scott v Charitopoulos (2008) 174 FCR 9, the only order attached to the bankruptcy notice was that which had been made by the Taxing Master of the Supreme Court of Victoria upon taxation of costs. The Taxing Master’s order recited that “The costs of the [applicants] are taxed and allowed in the sum of $123,587.41 to be paid by the [respondent].” Finkelstein J noted that in 1986 the Victorian Supreme Court Rules had changed, doing away with the Taxing Master’s certificates and allocaturs. As his Honour observed, at 11 [5] the new rule, O 63 r 56(2), enabled the Taxing Master to “make a final order with respect to the amount at which he or she allows the costs or of his or her disallowance of the costs”. Nevertheless, his Honour considered that the order made by a taxing master under O 63 r 56 was not a final order for the purposes of the Bankruptcy Act. He observed, at 11 [6]:

This is because all that the master is permitted to do by O 63 r 56(2) is to make an order that either certifies the amount of costs that are payable or certifies the amount of costs that have been disallowed. The master is not given the power to make an order requiring one party to pay to another party the costs so certified.

17    His Honour then went on to express the opinion that neither the Supreme Court Act 1986 (Vic) nor the Supreme Court Rules authorised the Victorian Taxing Master to make an order in the form set out at [16] above. He then explained, at 11 [8];

It follows that the obligation to pay the costs which the taxing master has taxed must be found elsewhere. In cases where the costs are taxed pursuant to an order, the obligation to pay the costs is to be found in the order itself. The order cannot be enforced until the costs have been taxed and a final order from the master is issued. In cases where: (a) the rules require one party to pay another party’s costs (see for example O 26 r 3(7)); or (b) the parties have agreed in writing that costs payable by one party to another be taxed, then those costs may be taxed without an order for taxation (O 63 r 10). Once the taxing master has made a final order with the respect to those costs, the order “may be enforced in the same manner as a judgment for the payment of money” (O 63 r 11(1)). In the first case the judge’s order, and in the second case the taxing master’s order, is a final order for bankruptcy purposes.

18    Despite that opinion and the explanation for it, Finkelstein J noted that a contrary view had been expressed by Hansen J in the Supreme Court of Victoria in Scott v Evia Pty Ltd [2008] VSC 324 where it was held that a taxing master’s order is a judgment that is enforceable in the same manner as any other judgment for the payment of money. Finkelstein J acknowledged, at 12 [11], that Hansen J’s view was inconsistent with his own opinion expressed in Commonwealth Bank v Horvath (Junior) and with Williams, Civil Procedure – Victoria at I 63.37.35. His Honour considered that “O 63 r 11 makes it clear that an order of a taxing master is not generally enforceable as a judgment or else why would the rules have provided that in some circumstances it can be enforced as a judgment; see Swinton & Company v Richez (1982) 33 BCLR 36, a case decided in different circumstances.”

19    Notwithstanding his view that Scott v Evia Pty Ltd had been wrongly decided, Finkelstein J applied it in holding that the Taxing Master’s order recited in the bankruptcy notice with which he was concerned was a final order for the purposes of the Bankruptcy Act. He explained that decision as follows, at 12 [13]-[14];

13    Neither the foregoing nor my view that Scott is wrongly decided provides the answer to this case. The reason is this. In common with other common law jurisdictions, in Victoria, subordinate legislation either means what it says or, in cases of difficulty, means what judges say it means. If a judge of the Supreme Court holds that a particular rule is to be given a particular construction then, whether the construction be right or wrong, that holding binds those who must enforce the rules until the judgment is set aside. Put simply, the power of the taxing master and the effect of his orders depend not only upon the language of the rules, but also upon the construction which has been placed upon them by judges in the relevant jurisdiction.

14    What that means for the present case is this. The officers of the Supreme Court who enforce judgments will enforce any final order made by a taxing master. This will occur because that is what Scott decided. That practice must be given effect for the purposes of the Bankruptcy Act.

20    In Scott v Evia Pty Ltd, Hansen J, as a result of his analysis of the relevant provisions of the Supreme Court Rules, concluded, at [36]-[37];

36    Rule 63.11 is not relevant to the present case. The rule is enabling and clarificatory to the extent it provides. It is to be understood as making plain that an order made by the Taxing Master in the circumstances set out in r 63.10 (d), (e) and (f) (that is, not pursuant to a curial order) is enforceable in the same manner as a judgment for the payment of money. It does not say, and in any event it does not follow, that an order made by the Taxing Master in the circumstances set out in r 63.10 (a), (b) and (c) (that is, pursuant to a curial order) is not enforceable in the same manner as a judgment for the payment of money. To so hold rests on an erroneous understanding of the Supreme Court Rules as they have been since 1986. The new Rules did away with the old system of allocaturs and certificates. The Supreme Court Rules require the Taxing Master to express “the result” (r 63.56(1)) in the form of an order to be authenticated in the same way as any other order of the Court.

37    Thus the result of taxation is an order, and the question is whether for some reason such an order is not effective and enforceable according to its terms, unless and until it is set aside. In my view no appellable error in the order is established. Further, there is nothing on the face of the order and nothing in the rules that indicates that it is not enforceable against the second and third defendants as a judgment for the payment of money. As r 66.01 provides, a judgment includes an order, and R 63.57(3) indicates that execution may be effected under an order of a Taxing Master. Notwithstanding that in this case the Taxing Master’s power to tax costs derived from the earlier order of Dodds-Streeton J, the Taxing Master’s order was open to him to make and, once made, is properly to be characterised as an order for the payment of money, and thus enforceable under O 66.

21    As a result of Finkelstein J’s characterisation, even if only for reasons of comity, of the order of a taxing master of the Supreme Court of Victoria as a final order for the purposes of s 41(3) of the Bankruptcy Act, I am obliged to come to the same conclusion in respect of the Taxing Master’s order of 9 November 2005 unless I am persuaded that Finkelstein J’s approach was clearly wrong; see Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 per French J, at [76] and Cooper v Commissioner of Taxation (2004) 139 FCR 205, per Lander J, at [46]. I am not so persuaded.

22    Another, independent, reason for regarding the order of the Supreme Court requiring the appellant to pay Blueprint’s costs as having been made on 9 November 2005 is that the facility conferred by s 41(3) of the Bankruptcy Act to issue a bankruptcy notice is conditioned on the applicant being “a creditor who has obtained … a final judgment or order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d) is deemed to be such a creditor.” A “final judgment or order” is indicated by s 40(1)(g) to mean “a judgment or order the execution of which has not been stayed” and s 40(3)(d) provides:

(d)    a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;

23    In my view, execution of an order for payment of costs cannot be levied, and nobody is entitled to enforce it, until, in a case like the present, the amount of the costs has been quantified upon taxation by the Taxing Master. This view I regard as consistent with the observation of Branson J in Franks v Warringah Council at [30], cited at [12] above, that “s 40(1)(g) of the Bankruptcy Act refers only to final judgments and final orders that can be enforced by a writ of execution.” It also conforms with her Honour’s having pointed out in the succeeding paragraph [31] that “In each case the amount of the costs which the order required Mr Franks to pay needed first to be quantified.” See also the following dictum of Lee J in Genovese v BGC Construction Pty Ltd [2006] FCA 105, at [16];

Although unnecessary to decide in the instant case it may be thought that the words of Item 2 and of Note 1 of the Schedule to the Notice make it clear that costs not fixed but ordered to be paid as part of a judgment or order must be set out in Item 2 of the Schedule and a certificate of those taxed costs attached. I note that in Stec v Orfanos [1999] FCA 457 at [17] it is suggested that it is not necessary to attach a certificate of taxed costs where a judgment recited in Item 1 of the Schedule provides for costs to be taxed. But such a conclusion would not be consistent with the words used in Item 2 of the Schedule or Note 1 and, furthermore, would fail to meet the evident purpose of a bankruptcy notice prescribed by the Act and Regulations, namely, to give a debtor notice of how the amount set out in the Notice has been calculated as the amount owing.

24    Where costs have to be quantified by an order of a taxing master it would be impossible, before the making of such an order, to give a debtor notice of how the amount set out in the Schedule to the bankruptcy notice “has been calculated as the amount owing”, so as to give effect to what his Honour regarded as an evident purpose of the Bankruptcy Act.

25    For either or both of the reasons indicated respectively at [21] and [23]-[24] above, I reject Ground 1(a) of the appellant’s notice of appeal.

Ground 1(b) – that the bankruptcy notice was not supported by the judgment or final order

26    Because of the conclusion reached in relation to Ground 1(a) that the order of the Taxing Master of 9 November 2005 was a final judgment or order or became part of such a judgment or order when the liability imposed by the order of Byrne J was quantified, Ground 1(b) cannot be sustained.

Ground 1(c) - that the bankruptcy notice was not based on an order that required the appellant to pay Blueprint

27    It follows from the reasons explained at [13], [21] and [23] above that the Taxing Master’s order of 9 November 2005 did require the appellant to pay Blueprint the costs which that order quantified in the sum of $17,139.20. This ground also fails.

Ground 1(d) - that the bankruptcy notice was not in accordance with the terms of the attached order.

28    As the attached order comprised or included the order of Master Bruce of 9 November 2005 which taxed and allowed Blueprint’s costs in the sum of $17,139.20 and that was the “amount of Judgments or Orders” specified in Item 1 of the Schedule to the Bankruptcy Notice, it follows that Ground 1(d) must be rejected.

Ground 1(e) - that the bankruptcy notice was based on an order that was not a final order

29    This ground essentially restates one of the premises of Ground 1(a), namely that the order of the Taxing Master was not a final order within the meaning of s 41(3)(a) of the Bankruptcy Act. For the reasons explained at [13], [21], [23] and [24] above, that premise has not been made out.

Ground 1(f) - that the bankruptcy notice overstated the amount of the judgment debt

30    As I understand it from the reasons of Phipps FM, this ground is predicated on the view that an amount of $1,750 paid to Blueprint by the appellant on 6 December 2007 was wrongly applied by Blueprint in part satisfaction of the appellant’s liability for costs pursuant to the Order of Byrne J of 2 August 2002 and the order of the Taxing Master of 9 November 2005 which quantified those costs and for interest thereon. The total of the costs of $17,139.20 and interest of $6,266.43 was $23,405.63 which was reduced to $21,655.63 as a result of Blueprint having credited against the debt specified in the bankruptcy notice the sum of $1,750 which it had received on 6 December 2007. That sum, the appellant contended, should have been applied in satisfaction of a separate order for costs made by Byrne J on 3 August 2006 when his Honour fixed the amount payable in the specific sum of $1,750.

31    I agree with the learned Federal Magistrate that this issue has been conclusively resolved against the appellant by Smith J in the Supreme Court of Victoria in proceedings between the same parties entitled Winn v Blueprint Instant Printing Pty Ltd [2008] VSC 522. In reasons published on 28 November 2008, his Honour concluded, at [30];

I proceed on the basis that, there being no time limit in his Honour’s order for payment of the $1750.00, the fact that Ms Winn waited 15 months to pay the amount of $1750.00 does not prevent the payment complying with the order. But she has the difficulty that she did not appropriate that payment expressly as a payment pursuant to the relevant order. There were in fact other orders which required payments of the same amount. Not having appropriated the payment to a particular order, she cannot now complain that Blueprint did not appropriate that payment to the order which she now seeks to have lifted to have a review conducted of the original taxation decision.

Ground 1(g) - that the bankruptcy notice misstated the claim as a judgment debt.

32    I do not understand this ground and have been unable to relate it to any part of the learned Federal Magistrate’s reasons which has not been canvassed elsewhere in these reasons. It is clear from the terms of the bankruptcy notice that it claimed a debt of $21,655.63 “as shown in the Schedule” and recited that “a copy of the judgments or orders relied on by the creditor is attached.” I cannot discern any respect in which the claim was misstated as a judgment debt unless the appellant is referring to the contention discussed above that the Taxing Master’s order was not a final order or a final judgment of the kind which could found a bankruptcy notice.

Ground 1(h) - that the bankruptcy notice overstated the interest claim

33    In support of this ground, the appellant contended only that;

The interest is overstated because it is claimed beyond the six year limit and is claimed on a judgment debt that does not exist.

In the particulars of interest claimed in Item 3 of the Schedule to the bankruptcy notice it was recited:

Interest is claimed pursuant to section 101(1) of the Supreme Court Act 1985 (Vic) at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) as follows:

Those particulars make it clear that interest was only claimed to have run from 10 November 2005 which was the day immediately following the Taxing Master’s order, and not outside any “six year limit.” It follows that this ground could only succeed if the appellant were correct in her primary contention that the bankruptcy notice was out of time, having been issued more than six years after the foundational order of Byrne J of 2 August 2002. For reasons already explained that contention is incorrect.

Ground 1(i) - that the bankruptcy notice was issued by only one of the joint creditors, Blueprint and Goodwin

34    This ground of appeal fails for the reasons explained at [61] of the first reasons.

Ground 1(j) - that the bankruptcy notice was invalidated by each of sub-grounds 1(a) to 1(i).

35    This compendious assertion of invalidity of the bankruptcy notice could only be made out if one or more of the preceding sub-grounds (a) to (i) had been upheld. For the reasons outlined above, that has not occurred.

Ground 2(a) - that the appellant had a counterclaim in excess of the amount claimed in the bankruptcy notice.

36    The appellant appears to rely in support of this ground on two alleged actual or contingent liabilities of Blueprint to her.

(i)    The joint liability of Blueprint and Goodwin

This contention has been considered and rejected at [61] of the first reasons.

(ii)    The contingent liability of Blueprint to pay the appellant’s costs at first instance in proceedings MLG 1351 of 2007 and on the appeal to this Court numbered VID 921 of 2008.

As appears from the first reasons and the orders made today in VID 921 of 2008 the appellant has not obtained an order for payment by Blueprint of her costs in either proceeding. This contended counterclaim, therefore, cannot be established.

37    No other basis for asserting a counterclaim has been articulated, let alone established in accordance with the principles established in Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346, at 350 and Glew v Harrowell (2003) 198 ALR 331, at 333.

Ground 2(b) - that two notices before the Court cannot both be valid

38    Phipps FM made it clear at [42]-[46] of his reasons published on 30 October 2009 that the first bankruptcy notice, the subject of proceedings numbered MLG 1351 of 2007, had been relied on as founding a creditor’s petition which had been dismissed by O’Dwyer FM who ordered Blueprint to pay the appellant’s costs of that petition. The first bankruptcy notice thereupon ceased to have any effect. The proceedings by way of appeal from the orders of Riley FM in relation to that first bankruptcy notice were only pursued in an endeavour by the appellant to recover her costs of the proceedings before her Honour. There were never two operative and effective notices before either this Court or the Federal Magistrates Court at the same time.

Ground 2(c) - that the costs assessment is in dispute

39    The appellant has exhausted all avenues for obtaining a review in the Supreme Court of Victoria of the Taxing Master’s order of 9 November 2005. That has been made clear by the order by Smith J on 28 November 2008 noted at [31] above when his Honour ordered that “the applications before [him] should be dismissed with costs, such costs to be paid on an indemnity basis”. In explaining that order his Honour observed, at [33]-[34] of his reasons:

33    The history of this matter in fact reveals an extreme example of a person misusing the law and the legal system to try to avoid her legal obligations. It would appear that Ms Winn has been engaged in a holding operation to delay having to pay the total of the taxed costs awarded against her. She has been accommodated a number of times and has had ample opportunity to seek the review that she now seeks. In the meantime, Blueprint has been delayed for a long time in recovering its costs and has been put to great expense in pursuing them. It is only now, faced with being made bankrupt, that Ms Winn has attempted to take the steps that she had to take to seek a review - namely, to comply with the order of Byrne J by paying the amount fixed costs and seeking an order for a review.

34    Whether her claim has any merits or not, the court should not assist her. The reality is, however, that she has not demonstrated any merits. The major point identified by counsel for her, that the Taxing Master should have taken steps to ensure that the costs were properly allocated between Blueprint and Goodwin, is met by the evidence of the taxation which shows that the Taxing Master approached the taxing of the costs bearing that very concern in mind. There might be issues of detail here and there in the taxation but that is all and she has not demonstrated the sort of clear issue needed to have her application taken seriously. Further, to allow the opportunity for a review of the taxation at this stage would be likely to result in further costs being incurred by Blueprint and no proposal has been put forward that would enable that prejudice to be addressed. Further, no proposal has been put forward for payment of all outstanding cost orders at this point.

40    An application by the appellant to the Victorian Court of Appeal for leave to appeal from the orders of Smith J was refused on 3 March 2010. It is therefore no longer accurate or realistic to assert that the costs assessment which underlay the bankruptcy notice is still in dispute or even that it was in dispute when the learned Federal Magistrate made his order of 30 October 2009.

Ground 2(d) - that Blueprint and Goodwin are joint creditors

41    This ground is rejected for the reasons explained at [61] of the first reasons.

Ground 2(e) - that Blueprint claimed as its costs in Supreme Court proceeding No 4215 of 2002 Goodwin’s costs in Supreme Court proceedings Nos 4216 and 4217 of 2002

42    As explained at [43] of the first reasons, there cannot be imputed to the Federal Magistrates Court any error by way of misapprehension of the Taxing Master’s allegedly mistaken aggregation of the costs payable to Blueprint and to Goodwin respectively.

Ground 2(f) - that Goodwin had given sworn evidence that Blueprint had paid his costs and claimed them as part of its own against the appellant

43    This sub-ground falls with sub-ground 2(e) for the reasons explained at [43] of the first reasons as adopted at [42] above.

Ground 2(g) - that the Taxing Master is obliged by O 63 r 56.1(5) of the Supreme Court Rules to review Blueprint’s bill of costs and vary or affirm the order of 9 November 2005.

44    This ground is fully answered by the matters canvassed at [39] above which precluded the appellant, after 28 November 2008, from agitating between herself and Blueprint her claim for a review of the Taxing Master’s order of 9 November 2005.

Ground 2(h) - that the Supreme Court has failed since 13 December 2005 to review the Taxing Master’s order and since 1 May 2006 to hear an appeal in relation to that failure.

45    The considerations noted in relation to sub-ground 2(g) have similarly precluded the appellant, since 28 November 2008, from asserting that this issue should be resolved differently between herself and Blueprint and from seeking curial relief to that effect.

Ground 2(i) - the sworn statements of Mr. Lassen and Terry that the appellant paid $1,750 in respect of the order of the Taxing Master of 9 November 2005 are false;

46    This complaint by the appellant is answered by the considerations summarised at [30] and [31] above.

Ground 2(j) - in the circumstances of (d), (e), (f), (g) and (h) the Taxing Master’s order of 9 November 2005 was obtained by dishonesty and a miscarriage of justice;

47    Since none of the complaints or criticisms discussed in relation to sub-grounds 2(d), 2(e), 2(f), 2(g) and 2(h) has been made out, this compendious sub-ground of appeal also fails.

Ground 2(k) - Blueprint’s conduct in (i) claiming Goodwin’s costs of 4216 and 4217 of 2002 as Blueprint’s costs in 4215 of 2002 to defeat the appellant’s counterclaim against Goodwin, and (ii) repeatedly issuing (4) bankruptcy notices that are invalid and / or not pursued for the collateral purpose of frustrating the review of taxation costs is an abuse of process;

48    This sub-ground is answered in part by the matters canvassed at [60] of the first reasons. In addition, the only bankruptcy notices which Phipps FM had to consider were that numbered VN 1372 of 2008, which was the subject of Riley FM’s orders, and that numbered VN 358 of 2009, which was the subject of the immediate application to set it aside which his Honour was hearing.

Ground 3 - that the Federal Magistrates Court failed to hold that the issue of two bankruptcy notices based on the same judgment debt was an abuse of process requiring it to “stay” the second bankruptcy notice

49    As noted at [38] above, the first bankruptcy notice ceased to have any effect on 24 November 2008 when O’Dwyer FM made his order dismissing the creditor’s petition which had been founded on the first bankruptcy notice. The second bankruptcy notice was not issued until 20 February 2009. There can be no suggestion that the issue of more than one bankruptcy notice based on the same judgment debt is an abuse of process. Such a course was expressly contemplated as being regular by a Full Court of this Court in Abignano & Anor v Wenkart [1998] FCA 1468. See also Romano v Peldan [2003] FCA 767 where Dowsett J observed, at [17];

Thirdly, it is submitted that the issue of a second bankruptcy notice was an abuse of process. Counsel conceded in the course of argument that this may simply be another way of ventilating the broader construction point to which I have referred. In any event, it is not a complaint which can be made out. It is quite clear from [Re] Fredericke [and Whitworth Ex parte Hibbard [1927] 1 Ch. 253] and Abignano that the issue of a second bankruptcy notice is not an abuse of process per se although, in appropriate circumstances, it may be necessary for the judgment creditor to make an election. The second notice was not issued in bad faith or to embarrass the debtor. It was issued for the proper purpose of advancing the bankruptcy process, given that the appellant was complaining about the inclusion of a relatively small amount of interest in the first bankruptcy notice.

Ground 4 - that the Federal Magistrates Court erred in independently procuring material outside the hearing

50    I gather from the appellant’s written response filed on 8 April 2010 to the written submissions which had been filed on behalf of Blueprint that this ground arises from the fact that a written outline of submissions had been filed on behalf of Blueprint in the Federal Magistrates Court but a copy had not been served on the appellant before the hearing on 12 October 2009 in which the appellant participated by telephone. The transcript of that hearing reveals that when Mr Scotter of Counsel sought to furnish written submissions, Phipps FM responded:

Well, perhaps you shouldn’t give [me] the document if Ms Winn hasn’t got it.

51    It seems that Mr Scotter then made oral submissions largely based on the written document which the learned Federal Magistrate had declined to receive. Those submissions were somewhat curtailed as a result of interventions by his Honour but included references to the judgment of Smith J noted at [31] and [39] above. The appellant exercised a right of reply as is recorded between pp 25 and 31 of the same transcript which notes his Honour’s observation that, at various points, she was repeating parts of her submissions-in-chief. At the end of the hearing on 12 October 2009, his Honour reserved his decision which was delivered on 30 October 2009.

52    This ground of appeal is answered a fortiori by the matters canvassed at [52] and [53] of the first reasons, because the material which came to the attention of the learned Federal Magistrate on 12 October 2009 was all directed to questions of law. There was nothing, as far as I can perceive, which led his Honour to make any disputed finding of fact. There was therefore no denial of procedural fairness to the appellant.

Ground 5 - that the Federal Magistrates Court erred in prejudging the outcome of the appeal from the Order of Federal Magistrate Riley

53    This ground was not amplified in the appellant’s written submissions or in the course of the oral hearing of her appeal to this Court. I assume that it is based on the following observations at [43] and [44] of the learned Federal Magistrate’s reasons:

43.    Federal Magistrate Riley ordered costs against the applicant. The applicant argues she has incurred costs of the appeal, and there will be further costs.

44.    The appeal has not been heard. It will not be because it has no utility. The applicant currently does not have a counterclaim or set off for these costs.

His Honour’s prediction that the appellant’s appeal from the orders of Riley FM would not be heard “because it has no utility” was obviously based on the correct view that the first bankruptcy notice which was the subject of Riley FM’s orders ceased to have effect on the making of the orders of O’Dwyer FM of 24 November 2008; see [38] above where it is noted that the appeal from Riley FM’s orders only remained on foot to enable the appellant to pursue her claim for the costs of the application in which those orders had been made. In the circumstances, Phipps FM’s prediction about that appeal could not have occasioned any denial of procedural fairness to the appellant.

Ground 6 - that the Federal Magistrates Court erred in obtaining and copying two previous erroneous judgments without notice to the appellant

54    If, as the appellant contends, the two judgments obtained by the learned Federal Magistrate and reproduced in his reasons for judgment were erroneous, that would have been reflected in a legal error which vitiated his Honour’s orders. As will be apparent from the foregoing reasons, I have been unable to discern any such error. By parity of reasoning with that set out at [52] above, this ground also fails.

Ground 7 - that the Federal Magistrates Court denied procedural fairness in permitting Blueprint to rely on material submissions and precedents that had not been served on the appellant;

55    This point is completely answered by the reasoning explained at [52] above. If, assuming it to be the fact, that prior notice of material, legal submissions and authorities relied on by Blueprint had not been given to the appellant, that would only avail the appellant if, by reference to that material, submissions and authorities, Phipps FM had been led into legal error. As will be apparent from the foregoing reasons, no such legal error has been demonstrated.

Ground 8 - that the Federal Magistrates Court denied the appellant procedural fairness in denying her appearance by videolink;

56    There is no suggestion that the learned Federal Magistrate’s decision turned in any way on the credibility or demeanour of the appellant. A full transcript was made of the hearing in which the appellant appeared by telephone. For the reasons developed at [50]-[52] above, this ground cannot avail the appellant.

Ground 9 - that the Federal Magistrates Court denied the appellant procedural fairness in failing to consider the appellant’s affidavits in proceedings in the Federal Magistrates Court numbered 1531 of 2007 and in the Supreme Court of Victoria numbered 4215 of 2002;

57    As developed in the appellant’s oral submissions, this ground came down to a contention that the learned Federal Magistrate had given inadequate or insufficient reasons for rejecting the appellant’s claims that Blueprint had been guilty of some abuse of process. This contention must be rejected for the reasons explained at [61] of the first reasons and [48] above.

Ground 10 - that Counsel for Blueprint was not registered to appear as counsel in the federal courts.

58    This ground is disposed of by the reasoning disclosed at [67] of the first reasons. The evidence before this Court reveals that Mr Scotter of Counsel, who appeared for Blueprint on the hearing before Phipps FM, was at all times entitled to practise as a barrister or solicitor, or both, in a federal court.

Conclusion

59    For the reasons which I have endeavoured to explain, none of the grounds raised by the appellant in her amended notice of appeal from the orders of the Federal Magistrates Court of 30 October 2009 has been made out. The appeal must therefore be dismissed with costs.

Associate:

Dated:    31 March 2011